Karnataka High Court
Somanathasa, S/O. Ramachandra Solanki vs The President on 29 January, 2024
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NC: 2024:KHC-D:2000
RSA No. 100214 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100214/2017(POS)
BETWEEN:
SOMANATHASA
S/O. RAMACHANDRA SOLANKI,
AGE: 45 YEARS,
OCC: BUSINESS,
R/O: DIVATE GALLI, HUBBALLI,
DIST: DHARWAD.
...APPELLANT
(BY SRI K. L. PATIL, ADVOCATE)
AND:
THE PRESIDENT,
SRI MOORUSAVIRAMATH
VIDYABHIVRUDDHI,
KALYANA NIDHI SAMSTHE,
Digitally signed by
MOORUSAVIRAMATH COMPOUND,
SAROJA HUBBALLI,
HANGARAKI DIST: DHARWAD.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI CHETAN T. LIMBIKAI, ADVOCATE)
DHARWAD BENCH
DHARWAD THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 24.10.2016 PASSED IN
R.A.NO.28/2016 ON THE FILE OF II ADDITIONAL SENIOR CIVIL
JUDGE, HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 08.01.2016 PASSED IN
O.S.NO.724/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:2000
RSA No. 100214 of 2017
JUDGMENT
The defendant in O.S.No.724/2010 on the file of the Principal Civil Judge and JMFC, Hubballi (henceforth referred to as 'Trial Court') has filed this regular second appeal challenging the judgment and decree dated 08.01.2016 passed therein, as well as the judgment and decree passed by the Second Additional Senior Civil Judge, Hubballi (henceforth referred to as 'First Appellate Court') in R.A.No.28/2016 vide judgment and decree dated 24.10.2016, confirming the judgment and decree passed by the Trial Court. Both the Courts held that the plaintiff is entitled for recovery of possession of the suit schedule property and to recover arrears of rent of a sum of Rs.4,500/-.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S.No.724/2010 was filed for recovery of possession of the suit schedule property and to direct the defendant to pay the arrears of rent of a sum of Rs.4,500/- as well as mesne profits from the date of termination of the tenancy.
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NC: 2024:KHC-D:2000 RSA No. 100214 of 2017
4. The plaintiff claimed that it was the owner of the property comprised in CTS No.1151 of CTS Ward No.III measuring 11025 square yards situated at Anchatgeri Oni, Hubballi, where it had constructed a commercial complex comprised of several shops. The plaintiff had executed a power of attorney in favour of its manager Mr. Anandagouda S/o. Basanagouda Patil to look after the affairs of the plaintiff and to represent the plaintiff before various authorities. It claimed that the defendant was inducted into the schedule property by the plaintiff on 06.03.2001 as a monthly tenant who had agreed to pay monthly rent of a sum of Rs.3,000/-. He had also agreed to get the shop premises constructed at his cost by spending a sum of Rs.1,80,000/- after obtaining necessary permission from the concerned authorities. The defendant had executed a lease agreement in favour of the plaintiff evidencing the terms of lease. After the shop was constructed, he continued to occupy it as a tenant. However, he failed to pay the monthly rent and fell in arrears of Rs.4,500/- from 01.01.2010 to 31.10.2010 and thereby violated the terms of lease agreement. Despite requests and reminders, he failed to pay the rent as well as arrears of rent. The plaintiff claimed that it required the -4- NC: 2024:KHC-D:2000 RSA No. 100214 of 2017 suit property for better use of the institutions that were established and therefore, issued a notice terminating the tenancy of the defendant and directed him to quit and deliver vacant possession of the suit schedule property and to pay the arrears of rent. The said notice was issued on 25.05.2010 and was served on the defendant on 29.05.2010. The defendant failed to pay the arrears of rent and also failed to vacate and hand over the vacant possession of the suit property. Hence, the plaintiff filed a suit to evict the defendant.
5. The defendant contested the suit and claimed that the power of attorney did not have the authority to file the suit on behalf of the plaintiff. He contended that the plaintiff cannot delegate its duties either to a co-trustee or to a stranger, unless the instrument of trust so provided. He denied the ownership of the trust and the authority given to its manager. However, he admitted the tenancy and the rent of a sum of Rs.3,000/- per month. He also admitted that he had spent a sum of Rs.1,80,000/- for construction of the shop as per the lease agreement. However, he denied that he was in arrears of rent of a sum of Rs.4,500/- for the period 01.01.2010 to 31.10.2010. He denied the notice of termination issued by the -5- NC: 2024:KHC-D:2000 RSA No. 100214 of 2017 plaintiff on 25.05.2010 and its service on him on 29.05.2010. He denied the claim of the plaintiff that it needed the suit property for its beneficial use and submitted that he was ready to abide by the terms and conditions of the lease agreement dated 06.03.2001.
6. Based on these contentions, the Trial Court framed the following issues:
"1. Whether plaintiff proves that, the defendant has committed default in payment of rent?
2. Whether plaintiff proves that the tenancy of defendant is validly terminated?
3. Whether the defendant proves that suit is not maintainable?
4. Whether plaintiff is entitled for the relief sought for?
5. What Order or Decree?"
7. The power of attorney of the plaintiff was examined as PW.1 and he marked Exs.P1 to P5 and defendant was examined as DW.1 and he marked Exs.D1 to D50.
8. Based on the oral and documentary evidence, the Trial Court held that the plaintiff had proved its ownership over -6- NC: 2024:KHC-D:2000 RSA No. 100214 of 2017 the suit schedule property and also that the tenancy of the defendant was terminated by issuance of a notice. Since the defendant did not deny that he was a tenant in the suit property, it decreed the suit and directed the defendant to quit and deliver vacant possession of the suit property and directed him to pay arrears of rent of Rs.4,500/-. Being aggrieved by the said judgment and decree, the defendant preferred regular appeal and the First Appellate Court heard the learned counsel for the parties and framed the following points for consideration:
"(1) Whether the appellant proves that the judgment and decree dt.08-01-2016 passed by the learned Principal Civil Judge & JMFC, Hubbali in O.S.No.724/2010 is contrary to law and facts and it needs interference?
(2) What order or decree?"
The First Appellate Court in terms of its judgment and decree dated 24.10.2016, dismissed the appeal. Being aggrieved by the said judgment and decree, the defendant has filed this regular second appeal.
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NC: 2024:KHC-D:2000 RSA No. 100214 of 2017
9. The learned counsel for the defendant contended that the suit was filed by the power of attorney of the plaintiff, though such an authorization was not permitted under the trust deed. He submitted that the power of attorney did not obtain prior permission for filing the suit and thereby he did not comply with the provisions of Order III Rule 2 of Civil Procedure Code. He contended that the Trial Court failed to frame proper and necessary issues, in view of the contentions of the defendant that the suit was not properly filed and that there was no proper authorization.
10. The defendant did not dispute that he was a tenant in the premises in question. The suit in question was filed for recovery of possession of the suit premises and for arrears of rent. The suit was filed by the President of the trust on its behalf. Though it was contended that the plaintiff was not authorized to represent a trust, a perusal of Ex.D1 indicated that the plaintiff could represent the trust. In so far as the contention that the plaintiff could not be represented by a power of attorney, the Trial Court held that the trust is managed by the sole trustee who had the authority to modify the trust and also delegate any rights and obligations. -8-
NC: 2024:KHC-D:2000 RSA No. 100214 of 2017 Accordingly, the Swamji had executed the Power of Attorney at Ex.D1 and there was no prohibition in the trust deed at Ex.D1 to empower Power of Attorney to institute suit for recovery of the possession of the trust property. The Hon'ble Apex Court in the case of J.P. Srivastava & Sons (P) Ltd and others Vs. Gwalior Sugar Co. Ltd and others - (2005) 1 SCC 172 held as follows:
29. Therefore although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees;
(3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly."
11. The evidence of plaintiff produced by the learned counsel for the defendant did not show any contra evidence to establish that the plaintiff was not authorized to file a suit or to appoint a power of attorney to initiate proceedings. Therefore, -9- NC: 2024:KHC-D:2000 RSA No. 100214 of 2017 the contention of the learned counsel for the defendant that the suit was filed by an unauthorized person and that the trustee did not allow the delegation of the powers of the trustees, is liable to be rejected.
12. In a suit for ejectment, all that the Court was required to examine was whether the plaintiff had proved the tenancy and whether he had lawfully terminated the lease and whether he was entitled to recover possession. As the defendant did not dispute that he was a tenant and that the lease was terminated in accordance with law, nothing survives for consideration and the Trial Court was therefore, justified in decreeing the suit. There is no error apparent on the face of record warranting interference by this Court in this regular second appeal. As no substantial question of law arises for consideration in this appeal, the same is dismissed.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 55 CT-ASCd